Improvement Notice Incorrectly Served Under Section 11 of the Housing Act 2004

OUTCOME: Allowed

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FIRST-TIER TRIBUNAL AND [NAME] (RESIDENTIAL PROPERTY) Case reference : BIR/41UD/HIN/2024/0017 Property : [ADDRESS], [POSTCODE] Appellant: [redacted] : [NAME] Director [APPELLANT] Respondent :

[redacted]

Representative :

[COUNSEL] [NAME] (Housing Standards Officer)

Type of application :

Application under paragraph 10(1) of Schedule 1 of the Housing Act 2004 to appeal against an Improvement Notice Tribunal and members :

Mr [NAME]. [NAME] Mr [NAME] Mr [NAME], J.P.

Date and place of hearing :

The property was inspected in the morning of 12th March 2025 with the hearing held that afternoon at City Centre Tower, 5-[ADDRESS], Birmingham. [POSTCODE]

Date of decision : 16th April 2025

DECISION 2

BACKGROUND

1. This is an Application by [APPELLANT] (‘‘the Appellant’’) under the Housing Act 2004 (‘‘the Act’’) against an Improvement Notice (‘‘the Notice’’) served by Walsall Metropolitan Borough Council (‘‘the Respondent’’) in respect of [ADDRESS], Walsall, West Midlands. [POSTCODE] (‘‘the Property’’).

2. On 18th August 2023 the Respondent received a referral from a support worker relating to mice infestation at the property. Mr [APPELLANT] [NAME] – the director of [APPELLANT], was contacted and asked to address this, the complainant later confirmed that the issue was resolved.

3. A further referral was received by the Respondent on 23rd October 2023 reporting that the ceiling in the living room has been affected by a roof leak and the plaster has started to form a crack, and bow.

4. A formal inspection was arranged by the Respondent with the Appellant and tenant for 25th October 2023 at 2:30pm. It was confirmed during this visit that the roof leak had affected the ceiling and the walls to the living room. The Appellant advised that there were ongoing repairs to the roof which had been temporarily left uncovered resulting in rainwater ingress. On 1st November 2023 a schedule of works was sent by the Respondent to the Appellant via email.

5. On 6th November 2023 the complainant sent a further email indicating that since the formal inspection carried out on 25th October 2023, the ceiling to the bedroom had collapsed.

6. On 7th November 2023 the Respondent’s officer attended the property and confirmed that part of the bedroom ceiling had collapsed and the walls in the bedroom were partially damp and covered in mould. The roof leak had also caused the living room ceiling to crack and bow.

7. Following the site visit on 7th November 2023, the Respondent served an Improvement Notice under Section 11 of the Housing Act 2004 on the Appellant dated 13th November 2023 in relation to the presence of a Category 1 Hazard in respect of Dampness and Mould Growth, stipulating that the Appellant completes the repairs by 5th January 2024.

8. On 9th January 2024 the Respondent’s officer wrote to the Appellant to arrange a re-visit of the property to confirm that the repairs have been completed satisfactorily. The Appellant however advised the tenant had not emptied the living room and therefore he could not complete the repairs to the living room ceiling and the walls. Following such the Respondent assisted the Appellant with arrangements for the room to be emptied and postponed the re-visit.

9. On 22nd January 2024 the Appellant informed the Respondent by email that he had replastered part of the ceiling to the living room and painted the walls.

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10. A formal inspection was carried out by the Respondent on 8th February 2024 to check the completion of works specified in the notice during which it was noted that there remained outstanding repairs. The Appellant was forwarded a schedule of outstanding repairs via email with a new deadline of 11th March 2024.

11. The Appellant called the Respondent’s officer on 19th March 2024 asking for an extension to the deadline due to him struggling to make appointments with the tenant. The deadline was extended by 4 weeks.

12. On 16th April 2024 the Appellant informed the Respondent that all repairs were completed. A formal inspection was carried out by the Respondent on 23rd May 2024, during which evidence of damp and mould to the kitchen & bathroom ceiling, part of the bedroom ceiling & walls, and to the living room ceiling was noted.

13. The Appellant’s response on being notified of outstanding works was that the mould growth was not due to moisture ingress but a lack of ventilation and as such was created by the tenant therefore it was their responsibility to address the issue.

14. On 6th June 2024 the Respondent revoked the Section 11 Improvement Notice dated 13th November 2023, as in their view additional items of disrepair had arisen, and a revised Improvement Notice under Section 11 of the Housing Act 2004 was served in its place together with a Demand for Payment under Section 49 of the Housing Act 2004. This new Improvement Notice was again in respect of Dampness and Mould Growth, which had been determined as a category 1 hazard. Schedule 2 of the Improvement Notice outlined remedial action that the Respondent considered practical and appropriate to take in relation to the hazards identified in Schedule 1 namely:-

i. Instruct the services of a suitably qualified and competent damp specialist to carry out a damp survey of the property and provide the council with a copy of the report no later than by 12 July 2024.

ii. Undertake all remedial works specified in the damp report to include removing the mould and treating all specified walls and ceilings to the living room, kitchen, bathroom and bedroom together with other applicable areas throughout the property with anti-mould treatment. Once this is completed make good the affected areas throughout the property and paint with anti-mould paint.

15. On 20th June 2024, the First-tier Tribunal ([NAME]) (‘‘the Tribunal’’) received an application from the Appellant appealing the Notice dated 6th June 2024 and the demand for payment in the sum of £310.00.

16. Directions were issued by the Tribunal on 23rd July 2024 following which submissions were made by both parties.

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THE PROPERTY INSPECTION

17. The Tribunal inspected the property on 12th March 2025 by courtesy of the tenant. The inspection was attended by the Appellant [APPELLANT] director of [APPELLANT] together with the Respondent [RESPONDENT] Council and the Tribunal members.

18. The property was found to comprise a 2nd floor flat in a block of 6 similar flats with central access, built in the 1960s, of brick construction under a pitched tiled roof. Visual inspection would suggest that the roof had recently been replaced together with new vented soffits and rainwater goods. Further, the Tribunal noted small holes drilled into the outer wall (and thereafter sealed) indicative of the installation of cavity wall insulation, however the extent of such insulation was not ascertained.

19. Internally the accommodation comprised a communal staircase to landing thereafter a doorway to the private accommodation which included entrance hallway, living room, small kitchen, small bathroom and double bedroom.

20. Signs of historic moisture ingress, condensation, damp and mould growth were noted at various locations however on testing surfaces with a damp meter low readings were recorded, indicating that the surface plasterwork, was dry. In addition, it was noted that parts of the property ceiling had been replaced and redecorated with other affected areas remaining in place

21. It was further noted that the heating was not switched on (despite being cold) and such was the extent of the tenant’s contents that any air circulation, especially around external walls, would have been minimal.

THE APPLICABLE LAW

22. The Act introduced a new system for the assessment of housing conditions and for the enforcement of housing standards. The Housing Health and Safety Rating System (‘HHSRS’) replaces the system imposed by the Housing Act 1985, which was based upon the concept of unfitness. The HHSRS places the emphasis on the risk to health and safety by identifying specified housing related hazards and the assessment of their seriousness by reference to (1) the likelihood over the period of 12 months of an occurrence that could result in harm to the [NAME] and (2) the range of harms that could result from such an occurrence. These two factors are combined in a prescribed formula to give a numerical score for each hazard. The range of numerical scores are banded into ten hazard bands, with band A denoting the most dangerous hazards and Band J the least dangerous. Hazards in Bands A to C (which cover numerical scores of 1000 or more) are classified as ‘category 1 hazards’ and those in bands D to J (which cover numerical scores of less than 1000) are classified as ‘category 2 hazards.

23. Where the application of the HHSRS identifies a category 1 hazard the local housing authority has a duty under Section 5 (1) of the Act to take appropriate enforcement action.

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Section 5 (2) sets out the courses of action (which include the serving of an enforcement notice) which may constitute appropriate enforcement action.

24. Where the application of the HHSRS identifies a category 2 hazard the local housing authority has a power under Section 7(1) of the Act to take enforcement action. The serving of an Improvement Notice is one of the types of enforcement action which may be taken.

25. Section 9 of the Act requires the local authority to have regard to any guidance for the time being given by the appropriate national authority about the exercise of their functions in connection with the HHSRS. In February 2006 the Secretary of State issued ‘Housing Health and Safety Rating System – Operating Guidance’ (‘Operating Guidance’) which deals with the assessment and scoring of HHSRS hazards. At the same time the Secretary of State also issued ‘Housing Health and Safety Rating System – Enforcement Guidance’ (‘Enforcement Guidance) which is intended to assist local housing authorities in deciding which is the most appropriate course of action under Section 5 of the Act and how they should exercise their discretionary Powers under Section 7 of the Act.

26. The person upon whom an Improvement Notice is served may appeal to a First-tier Tribunal and ([NAME]), who may by order confirm, quash or vary the Improvement Notice under Part 3 of Schedule 1 to the Act.

THE IMPROVEMENT NOTICE

27. The items identified in schedule 1 of the Notice dated 6th July 2024 were:

Category One Hazards

1) There is evidence of damp and mould growth to the living room ceiling and walls. 2) There is evidence of damp and mould growth to the bedroom ceiling and walls. 3) There is evidence of damp and mould growth to the kitchen ceiling and walls. 4) There is evidence of damp and mould growth to the bathroom ceiling and walls.

28. Schedule 2 of the notice stipulated remedial action to be carried out at the subject property which the Respondent considered practical and appropriate to take in relation to the hazards identified in Schedule 1 above. These were:-

a) Instruct the services of a suitably qualified and competent damp specialist to carry out a damp survey of the property and provide the council with a copy of the report no later than by 12 July 2024. This to be provided by sending this to: [NAME] [NAME], [ADDRESS], [POSTCODE] or by email to: [EMAIL].

b) Undertake all remedial works specified in the damp report to include removing the mould and treating all specified walls and ceilings to the living room, kitchen, bathroom and bedroom together with other applicable areas throughout the property

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with anti-mould treatment. Once this is completed make good the affected areas throughout the property and paint with anti-mould paint.

THE APPELLANT’S SUBMISSIONS

29. The Appellant’s undated submission comprised an undated letter referring to an attached report from a [COMPANY] and a letter from a [NAME] indicating that “all ceilings are 100% dry” and the mould growth was “due to the tenant lifestyle and nothing else”.

30. [APPELLANT] painter and [NAME] in his letter dated 12 July 2024 confirmed that he “had attended at the property on a few occasions to carry out decorating works” and went on to say that he strongly believed that the cause of the dampness was due to poor or complete lack of ventilation to the property, the windows had not been opened and air vents were closed allowing no airflow which had caused condensation to build up.

31. In [COMPANY] undated letter the author refers to the historic moisture ingress confirming that the Landlord had addressed the issue and went on to say that the damp meter readings indicated that the surfaces were dry which was supported by photographic evidence. Thereafter the letter offers advice to the tenant regarding the ventilation of the property when cooking and bathing for the removal of excess moisture and recommended low level background heating and further informed the tenant that “if rooms are stacked with too many items this will affect air flow around that area”.

THE RESPONDENT’S SUBMISSIONS

32. The Tribunal does not intend to repeat the sequence of events and steps taken prior to the issuing of an Improvement Notice and the details of the Improvement Notice here.

33. In issuing the Improvement Notice the Respondent assessed the property to have a category 1 hazard of damp and mould growth outlining in their submission their duty under Section 5 of the Housing Act 2004 to take appropriate action where such a category 1 hazard existed. Further, the Respondent stated that the tenant had a right to live in accommodation that was safe and that the Appellant landlord had a statutory obligation under Section 11 of the Landlord and Tenant Act 1985 to keep in repair the structure and exterior of the property which they considered to be the cause of the dampness and mould growth.

THE RESPONDENT’S RESPONSES

34. The Respondents’ response to the Appellant’s submission stated that they did not contest that the Appellant carried out works in response to the initial Improvement Notice served on 13th November 2023 but went on to suggest that the Appellant did not properly investigate the cause of the hazard and thus the corrective works were not undertaken, or

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that they might not have been undertaken properly. It was the Respondent’s contention that on completion of the works the Appellant did not take the appropriate steps to remove the residual moisture in the building structure which led to the damp and mould growth.

35. Further, the Respondent did not agree that the Appellant’s tenant was the cause of the damp and mould hazard at the property stating that the Appellant needed to seek the expertise of an appropriately qualified and competent damp specialist to properly investigate the cause of the problem so that it can be remedied effectively.

WITNESS STATEMENT OF [NAME]

36. The Respondent included within their bundle a signed witness statement by their employee [NAME] [NAME] in her role as a Housing Standards Officer which outlined the sequence of events leading up to the service of the Improvement Notice including the revocation of the previous Improvement Notice dated 13th November 2023.

HEARING

37. The Hearing was attended by the Appellant Mr [APPELLANT] director of [APPELLANT], Respondent [RESPONDENT] [NAME], Walsall Metropolitan Borough Council, and observer [APPELLANT].

38. The [APPELLANT] submitted that he had complied with the Improvement Notice employing the services of a [COMPANY] with over 40 years’ experience to undertake a survey of the property and whose conclusion was that there was currently no damp in the premises. Further, he had employed the services of a reputable painter and [NAME] who had attended at the property on more than one occasion cleaning down the affected areas with a fungicidal wash, coating the areas with anti-fungicidal solution and thereafter repainting with anti-mould paint.

39. The [APPELLANT] accepted that the property had previously suffered from moisture ingress over the period when the roof was being replaced but he had made good the damage by removing the damaged and fallen plaster, installing fibreglass insulation in the roof void and thereafter replastering and painting the ceilings.

40. Moreover, the [APPELLANT] stated that he considered himself to be a good landlord and had and would continue to do everything in his power to address any issues when they arise, however, as outlined in the damp specialist report there is no moisture ingress and the issues were as a direct result of the [NAME]’s lifestyle choice by storing excessive contents in the property which restricted air movement and ventilation and not heating the accommodation. He also advised that whilst the flat was rented out as a one person unit, a [NAME] was living there, doubling the amount of moisture vapour being released into it.

41. The Respondent submitted that in her view the damp and mould growth remained because the Appellant had not taken appropriate steps to remove the residual moisture in the

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building structure, including in the loft insulation, whilst carrying out the building works and the replastering of the ceiling.

42. Further, the damp and mould had extended beyond the previously affected areas of the property hence the original Section 11 Improvement Notice was revoked and on completion of the calculations for the hazard rating a revised Section 11 Improvement Notice was served.

43. On being asked by the Tribunal the, Respondent confirmed that whilst it was her opinion that the roof leak and alleged remaining water affected material, was the cause of the mould growth, there was no proof to this effect. Further, the Respondent accepted that both the [NAME] and Tribunal members electronic moisture meters recorded generally “air dry” readings from the walls and ceilings.

44. On being pressed by the Tribunal the Respondent further agreed that the Appellant had carried out the building works under the terms of the 13th November 2023 Improvement Notice and had instructed the services of a suitably qualified and competent damp specialist and by commissioning a competent [NAME] had removed the mould and treated all specified walls and ceilings to the living room, kitchen and bathroom prior to the service of the 6th June 2024 Improvement Notice.

45. Further, the Respondent confirmed that she had not commissioned a damp survey and thus was unable to state with authority, contrary to the [NAME], that the walls and ceilings were damp prior to the service of the 6th June 2024 Improvement Notice.

DETERMINATION

46. The questions for the Tribunal to answer in respect of this appeal are: -

(a) Is the Respondent entitled to serve an Improvement Notice and is this the most

appropriate course of action? (b) Do hazards exist and if so what category? (c) Has the correct Improvement Notice been served? (d) Has the notice been served on the correct party? (e) Has the council gone through the necessary steps prior to issue of the

improvement notice? (f) Should the council have taken enforcement action? (g) If so, what enforcement action is appropriate? (h) If an Improvement Notice is the correct action, should the terms be varied (specified remedial works and/or timescale). (i) If works in the schedule are found to require vacant possession would a prohibition order be more appropriate. (j) Does the Tribunal confirm, quash or vary the Improvement Notice?

47. In the tribunal’s view, questions (b) and (c) above, are the most relevant in this case. As outlined in the foregoing, the Respondent conceded that the Appellant had undertaken the

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specified works identified in the 13th November 2023 Improvement Notice and was unable to state with confidence, contrary to the [NAME], that on service of the 6th June 2024 Improvement Notice, the walls and ceilings, in the stated rooms were damp.

48. In undertaking the HHSRS assessment the Respondent had determined that a category 1 hazard in respect of dampness and mould growth was present at the property. The calculations undertaken in this assessment resulted in a “hazard score” of 1,630.00 (band C) and were based on the assessing officers determination that the “likelihood” was 1 in 3. This “high level” likelihood figure was based on the presence and extent of dampness (from the leaking roof) and mould growth at the property. As the Respondent conceded that the applicant had undertaken the roof repair (and other works) and could not confirm that wall and ceiling surfaces were actually damp, prior to the service of the Improvement Notice on the 6th June 2024, then this likelihood figures is considered unreasonably high.

49. Given the methodology of the HHSRS, any “lower” likelihood figure used in the rating system calculation, would produce a “hazard score” of less than 1000, (e.g. a likelihood figure of 1 in 6 would result in a hazard score of 815) so a category 2 hazard would be present (and not category 1).

50. The significance of the above is that the Local Housing Authority have served the Improvement Notice under section 11 of the Housing Act 2004, which relates only to category one hazards. At most, on the 6th June 2024 the dampness and mould growth present at the property would have been a category 2 hazard and therefore the Local Housing Authority should have served an Improvement Notice under section 12 of the Housing Act 2004. In short the wrong notice has been served

51. Accordingly, it is the Tribunal’s decision that the correct Improvement Notice was not served and therefore quash the notice dated 6th June 2024.

52. It therefore follows that the S49 Notice (Demand for Payment) is also quashed.

APPEAL

53. Any appeal against this Decision must be made to the Upper Tribunal and (Lands Chamber). Prior to making such an appeal the party appealing must apply, in writing, to this Tribunal and for permission to appeal within 28 days of the date of issue of this Decision, (or, if applicable, within 28 days of any decision on a review or application to set aside) identifying the decision to which the appeal relates, stating the grounds on which that party intends to rely in the appeal, and stating the result sought by the party making the application.

[NAME] First-Tier Tribunal ([NAME])